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Does a Stipulation Discontinuing an Action Vacate a Judgement ?

New York |
Filed under: Litigation

A default judgt. in a Consum. Cred. matter was entered against me. I'd failed to appear/answer because I'd never been served. I later found out & filed an RJI & Motion to Vacate dflt. judgmt. Judge ordered Trav. hrng. to determine issue of service. Plntff appeared at "pre-hearing" sched. conf. & told court clerk they didn't want to go fwd. with hrng. & were withdrawing. Clerk rmvd. matter from cal. call and put it over for 3 weeks & said plaintiff should file approp. papers discont. action prior to that date. Plntff sent me a Stip. Discont. Action which they want me to sign & then they will file w. court. Stip. doesn't contain language vacatg. judgt. but discontinues action. Is that sufficient ? (i.e. , if action is discont. is judgmt auto vacated -- or must it explicitly state such ?)

Attorney Answers 1

  1. No, a stipulation of discontinuance alone does not vacate a prior entered judgment. The effects of a stipulation of discontinuance are governed by CPLR 3218(c), and can only adjudicate the merits of an action if there is a prior discontinuance for the same cause of action.

    However, by your question, I cannot tell if an actual money judgment was entered. The Court Clerk can help you to determine that. If no judgment was entered, then a stipulation of discontinuance may be sufficient.

    If a judgment was entered, it needs to be dealt with. If they are willing to stipulation to vacate the judgment, or file a satisfaction of judgment, those are separate issues that must be separately and expressly agreed upon.

    If there is a judgment entered against you, I would suggest that you hire a litigator, even for one hour, to negotiate the stipulation and see that your rights are protected.

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